21

July, 2012
Pandora Box Opens with Domestic Transaction
now covered under Transfer Pricing
Jinesh Bhagdev, Practicing Chartered Accountant and Jatin Popat, Practicing Company Secretary
A Company Secretary holds a key position in any Company
as the Compliance Ofcer of the Company. A Company
Secretary is responsible for all regulatory compliances of
Company. A Company Secretary supervises the nalization
of Annual Accounts of a Company and is also a party
to sign the Balance Sheet when a Company Secretary is
employed by the Company. A
Company Secretary has to ensure
that all disclosures with respect
to nancial statements, company
law compliances, taxation, audit,
related party disclosure, etc. has
been disclosed and that the nancial
statement gives a true and fair
view of the nancial performance
of the Company. Merely because a
Company has a hired specialist key
personnel taking care of taxation
related matters (including transfer
pricing matters) including Financial
Director or a Chief Financial
Ofcer or a Chartered Accountant who takes care of tax
related compliance matters does not absolve a Company
Secretary from his duties to ensure that tax related matters
are regularly complied by the Company in a timely manner.
Even then, a Company Secretary has to overlook the work
done by the key personnel or a Chartered Accountant and
ensure appropriate compliance by the Company.
As per the Income Tax Act, any income (expenses) arising
from an international transaction (or specied domestic
transaction) with an Associated Enterprise shall be
computed having regard to arms length price. Accordingly,
it is imperative for the Company Secretary to understand
certain terminologies governing the Indian Transfer Pricing
Regulations.
1. Associated Enterprise:
Two companies can be said to be AEs when there is
direct or indirect participation in management, control
or capital by one enterprise in other enterprise or by
the same person in two enterprises. The participation
in management, control or capital can be through direct
or indirect equity holding, control over the board of
directors, or appointment of one or more executive
directors by one enterprise in other enterprise or by the
same person in two enterprises.
Situations like granting of loan more than 51% of the
book value of assets, giving guarantee of more than 10%
of the total borrowings of the other Company, complete
dependence on know-how, patent, etc. of the other
Company, or purchase of raw materials from the other
Company greater than 90% of the total raw material
purchased by the Company during
the year, or one entity has more
than 10% of the benecial interest
in a partnership rm, association
of persons or body of individuals
triggers the deemed ction and the
two entities will be deemed to be
AE irrespective of the fact that there
is no direct or indirect participation
in management, control or capital
within the enterprises.
Role of Company Secretary:
The prima-facie role of a
Company Secretary is to identify
all the AEs with whom the Company has transacted
during the year. There are likely chances that some of
the entities which are falling under the deeming ction
might go unnoticed to the auditors. The consequence
of non-reporting of a transaction is as high as 2 % of
the total value of transaction that went unreported.
Further, penalty proceedings can also be initiated for
concealment of true facts and disclosure under section
the Income Tax Act.
2. International Transaction:
An international transaction means a transaction
between two or more AEs, in the nature of purchase,
sale or lease of tangible or intangible property, or
provision of services, or lending or borrowing money,
or any other transaction having a bearing on the prots,
income, losses or assets of such enterprises, and shall
include a mutual agreement or arrangement between
two or more AEs for the allocation or apportionment of,
or any contribution to, any cost or expense incurred or
to be incurred in connection with a benet, service or
facility provided or to be provided to any one or more
of such enterprises.
Finance Act 2012 has now claried that an international
transaction shall also include the following:
FINANCE AND TAX
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July, 2012
24
capital nancing, including any type of long-term
or short-term borrowing, lending or guarantee,
purchase or sale of marketable securities or any
type of advance, payments or deferred payment
or receivable or any other debt arising during the
course of business;
provision of services, including provision of
market research, market development, marketing
management, administration, technical service,
repairs, design, consultation, agency, scientic
research, legal or accounting service;
a transaction of business restructuring or
reorganization, entered into by an enterprise with
an AE, irrespective of the fact that it has bearing
on the prot, income, losses or assets of such
enterprises at the time of the transaction or at any
future date;
Further, Finance Act 2012 has also claried that an
intangible asset shall also include marketing related
intangible such as trademarks, trade names, brand
names, logos, etc; technology related intangible
such as process patent, patent application, technical
documents and know-how; artistic related intangible
such as literary works and copyrights, musical
compositions; data processing related intangibles
such as proprietary computer software, software
copyrights, automated databases; engineering
related intangible such as industrial design, product
patent, trade secrets, engineering drawings and
schematics, blueprints; customer related intangible
such as customer list, customer contracts; goodwill
related intangible such as institutional goodwill;
professional practice goodwill, celebrity goodwill,
etc.
Role of Company Secretary:
Whenever a Company is proposing to enter into
any of the above international
transactions, a Company
Secretary should liaise with the
Finance Director or the Chief
Financial Ofcer of the Company
and ensure that an appropriate
advise from a transfer pricing
specialist has been taken as to
what should be an appropriate
arms length price for entering
into such international
transactions.
When such transaction is a
continuous transaction which
is taking place, the Company
Secretary should liaise with the Finance Director
or the Chief Financial Ofcer and ensure revisiting
their pricing model on a reasonable concurrent
level so as to demonstrate to the tax authorities
that the transfer pricing documentation are
maintained on a contemporaneous basis
3. Specied Domestic Transaction:
TP until now was applicable to companies having cross
border transactions with their AE. However, Finance
Bill 2012, honoring the supreme court ruling in case of
CIT vs. M/S Glaxo Smithkline Asia (P) Ltd. (Special
Leave to Appeal (Civil) No(s).18121/2007), expanded
the ambit of TP to specied domestic transactions w.e.f
01 April 2013.
Transactions covered under the ambit of domestic
transfer pricing:
Any expenditure in respect of which payment is
made or is to be made to a person referred to in
Section 40A(2)(b) of the IT Act;
Any transaction that is referred to in Section 80A;
Any transfer of goods or services referred to
in Section 80-IA(8) i.e. applicable to companies
operating as industrial undertaking or enterprises
engaged in infrastructure development;
Any business transacted between the assessee and
other person as referred to in section 80-IA(10);
Any transaction, referred to in any other section
under Chapter VI-A or section 10AA, to which
provisions of sub-section (8) or sub-section (10) of
section 80-IA are applicable;
Any other transaction, as may be prescribed by the
board.
Provided that the aggregate value of the transaction
entered into by the assessee with its domestic AE
exceeds ` 5 crore.
Implication of such amendment by
Finance Act, 2012:
All the transactions entered into by the
taxpayers operating in Special Economic
Zones (SEZs); taxpayers entering into
transactions with certain related parties
specied under section 40A(2) and all
the taxpayers claiming prot based
deductions for undertaking specied
business activities (under section 80A, 80-
IA, etc.) will be covered.
The most likely affected industries are
industries operating in SEZs, infrastructure
developers and / or infrastructure
FINANCE AND TAX
Pandora Box Opens with Domestic Transaction now covered under Transfer Pricing
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25
July, 2012
operators, telecom services industries, industrial park
developers, power generations or transmission, etc.
Apart from these industries, the business conglomerates
having signicant intra-group transactions would be
impacted.
Most likely transactions under the scanner of the TP
Authorities would be:
Interest Free Loans to group companies;
Granting of Corporate Guarantees / Performance
Guarantees by Parent Company to its subsidiaries;
Intra-group purchase / sell / service transactions;
Payment made to key personnel of the group
companies;
Payment made to relatives of key personnel of the
group companies.
Role of a Company
Secretary:
Companies which did
not have international
transactions till date,
however had domestic
transactions with related
parties, were not governed
by the Indian TPR.
However, now since the
domestic transfer pricing
regulations are in place,
Company Secretary of
the companies who have
domestic transaction with
its related parties equal to
or more than ` 5 crore or
companies whose present
domestic transaction less
than ` 5 crore but is likely to increase beyond ` 5 crore
in the nancial year 2013-14 are advised to validate
their present business model and pricing methodology
from a transfer pricing perspective which will enable
them to take corrective actions, if necessary.
4. Arms Length Price:
An arms length price, is a price at which a transaction
is entered into by a Company with a third party under
normal market / economic conditions, i.e. without
the inuence of the relation between the parties. The
principle of arms length pricing requires a Company
to enter into a transaction with its AE similar to a
transaction it has entered into or would have entered
into with a third party under uncontrolled conditions.
Role of a Company Secretary:
The role of the Company Secretary is to ensure that all
the transactions which are entered into by a Company
with its AE should be entered into having regards to
arms length price (and not at arms length price). If
the transactions are found not to be at arms length, the
Company might face huge transfer pricing additions
during the transfer pricing assessments.
Check List for a Company
Secretary to ensure appropriate
compliance of Transfer Pricing
Regulation:
1. During the nancial
year, liaise with the Financial
Director or the Chief Financial
Ofcer to identify the list of
AEs and determine the value
of International Transactions
or specied domestic
transactions.
2. Revisit the existing
business model and transfer
pricing methodology atleast
once in a year to ensure that the
transactions of the Company
with its AEs are at arms length
to justify contemporaneous nature of transfer pricing
business model.
3. Ensure that the Transfer Pricing Accountant Report is
led with the Assessing Ofcer before the due date of
ling of the return of income i.e. 30 November.
FINANCE AND TAX
Pandora Box Opens with Domestic Transaction now covered under Transfer Pricing
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